Citation Nr: 0434390
Decision Date: 12/30/04 Archive Date: 01/05/05
DOCKET NO. 02-19 241 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUE
Entitlement to service connection for skin disease of the
head, arms, and left leg, including as due to exposure to
herbicides.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active duty from May 1970 to March
1972.
The Board of Veterans' Appeals (Board) notes that the issue
on appeal arose from a Department of Veterans Affairs (VA)
Regional Office (RO) rating decision.
In June 2004, the veteran attended a videoconference hearing
at the RO before the undersigned Veterans Law Judge of the
Board in Washington D.C.
This appeal is Remanded to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify you if
further action is required.
REMAND
This claim must be afforded expeditious treatment by the
Veterans Benefits Administration Appeals Management Center
(VBA) AMC. The law requires that all claims that are
remanded by the Board or by the CAVC for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs (or VBA AMC) to
provide expeditious handling of all cases that have been
remanded by the Board and the CAVC. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
The Board notes that the issue of entitlement to service
connection for skin disease of the head, arms, and left leg
including as due to exposure to herbicides remains
unresolved, clinically. Colvin v. Derwinski, 1 Vet. App. 171
(1991).
In reviewing the record, including the veteran's service
medical records it appears that he was initially diagnosed
with acne vulgaris while in service. In order to adequately
address the issue on appeal and to accord the veteran every
equitable consideration, a VA dermatologic examination should
be undertaken in order to determine the nature, extent of
severity, etiology and date of approximate onset of any
current identifiable chronic acne vulgaris process, if
present.
VA has a statutory duty to assist the veteran in the
development of facts pertinent to his claim. Littke v.
Derwinski, 1 Vet. App. 90 (1990). The fulfillment of the
statutory duty to assist includes providing additional VA
examinations by a specialist when recommended and conducting
a thorough and contemporaneous medical examination which
takes into account the records of prior medical treatment, so
that the disability evaluation will be a fully informed one.
See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v.
Derwinski, 1 Vet. App. 121, 124 (1991).
To ensure that the VA has met its duty to assist the claimant
in developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED for the following development:
1. The veteran has the right to submit
additional evidence and argument on the
matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369
(1999).
2. The veteran should be requested to
provide a list of the names and addresses
of all VA and non-VA doctors and medical
care facilities (hospitals, HMOs, etc.)
who have treated him since service for
acne vulgaris. The veteran should be
provided with release forms to be signed
and returned for each health care
provider identified.
When the veteran responds, obtain records
from each health care provider the
veteran identifies unless they are
already of record.
3. The veteran should be afforded a VA
dermatologic examination by a specialist
in dermatology or other appropriate
specialist, including on a fee basis, if
necessary, for the purpose of determining
the nature, extent of severity, etiology
and date of approximate onset of any
identifiable underlying acne vulgaris
process or other chronic skin disorder
found on examination. The claims file
and a separate copy of this remand must
be made available to and reviewed by the
examiner prior and pursuant to conduction
and completion of the examination. The
examiner must annotate the examination
report that the claims file was in fact
made available for review in conjunction
with the examination. Any further
indicated special studies and examination
must be conducted.
Following a comprehensive review of the
examination findings and claims file, the
examiner should render an opinion as to
whether it is at least as likely as not
(e.g., a 50 percent or greater
probability) that any identifiable
underlying chronic acne vulgaris process
or other chronic skin disorder, if
present, initially manifested in active
service.
4. Thereafter, the veteran's claims file
should be reviewed to ensure that all of
the foregoing requested development has
been completed. In particular, the
requested examination report and required
medical opinion should be reviewed to
ensure that they are responsive to and in
complete compliance with the directives
of this remand and if they are not,
corrective procedures should be
implemented. The Board errs as a matter
of law when it fails to ensure
compliance, and further remand will be
mandated. Stegall v. West, 11 Vet. App.
268 (1998).
5. After undertaking any further
development deemed essential in addition
to that specified above, the issue of
entitlement to service connection for
skin disease of the head, arms, and left
leg including as due to exposure to
herbicides, should be formally
adjudicated.
If the benefit requested on appeal is not granted to the
veteran's satisfaction, the VBA AMC should issue a
supplemental statement of the case (SSOC). The SSOC must
contain notice of all relevant actions taken on the claim for
benefits, to include a summary of the evidence and applicable
law and regulations pertinent to the claim currently on
appeal. A reasonable period of time for a response should be
afforded. Thereafter, the case should be returned to the
Board for final appellate review, if in order.
By this remand, the Board intimates no opinion as to any
final outcome warranted. No action is required of the veteran
until he is notified by the VBA AMC; however, the veteran is
hereby notified that failure to report for any scheduled VA
examination(s) without good cause shown may adversely affect
the outcome of his claim for service connection. 38 C.F.R. §
3.655 (2003).
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).